Thoughts on the Virginia and Kentucky Resolutions of 1798

I’ve become thoroughly depressed by current events lately, so I’ve decided instead to go back to reading more American history. I’ve always respected the men and women of the founding generation: their bravery and fierce independent streak laid the foundation for the America we know today, for better or worse. Even though the U.S. Constitution is a deeply flawed document that led to the biggest and most intrusive government in world history, it wasn’t originally so.

In 2015, Gallup, a leading polling and analytics firm, found that 60% of Americans believed the federal government had too much power. Given the federal government’s penchant for expanding their own scope and authority, that figure shouldn’t be surprising. What may be surprising, though, is that the debate over federal power goes back much further than many realize, all the way back to the founding generation.

In 1798, when President John Adams and the Federalist Congress passed the Alien and Sedition Acts, many believed them to be a violation of the federal government’s clearly defined powers outlined in the U.S. Constitution. Shortly after its passage, several private citizens critical of the federalist government found themselves charged, indicted, convicted, jailed and fined in federal courts, which by that time were packed with federalist judges. In response, James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions of 1798, respectively.

In the Virginia Resolution, Madison re-emphasizes where the powers of the federal government come from, as well as defends the right of the states to “interpose” themselves between the federal government and the “authorities, rights and liberties” of the states and the people. Effectively, Madison argues that the states have the right to determine the constitutionality of any federal laws and in so doing, the states are “duty bound” to stop any abuses of the federal government. The reason is simple: the states created the federal government and delegated its powers in the constitution and, as a result, the states have the duty to keep the powers of the federal government in check.

Madison’s view that the states have the power to determine the constitutionality of federal laws, as well as openly defy them if necessary, is certainly at odds with the modern day American understanding of U.S. Government. Most people see the role of determining the constitutionality of federal laws as exclusively under the purview of the federal court system. This view, taught in all government schools, fundamentally misunderstands the constitution as it was ratified by the states. The founders, as evidenced by the 9th and 10th amendments, viewed the states as a final check on the power of the three branches of federal government.

Madison wrote, “the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government.” (Emphasis mine.) Madison rightly saw that the tendency of the federal government to join together and expand power at the direct expense of the states was “inevitable” and would eventually lead to back to monarchy. The independent states offered the best defense against such an expansion of federal power.

Thomas Jefferson, in the Kentucky Resolution, echoes Madison’s concerns over the consolidation and expansion of federal power. He writes, “the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers”. Jefferson understood that federal courts would ultimately side with the federal government in matters of its authority, but even Jefferson couldn’t have imagined how prescient his words have become.

Regarding the rights of the states, Jefferson’s language was even stronger than Madison’s. Where Madison claimed the states were “duty bound” to oppose unconstitutional federal power, Jefferson writes, with no equivocation, that the states, who formed the constitution, are “sovereign and independent” and have the “unquestionable right” to determine the constitutionality of federal acts.    Furthermore, Jefferson argues, the “rightful remedy” to such an infraction is “nullification”; that is, for the states to invalidate any federal acts it has deemed unconstitutional.

What the Virginia and Kentucky Resolutions show is that the struggle over the size and scope of the central government is nothing new in American political culture. In fact, it is the struggle that defined the revolutionary period and the creation of the United States. Unfortunately, those who have argued against increased federal power have long been on the losing side. While the states have largely been content to trade their sovereignty and independence for federal tax dollars, the words of Madison and Jefferson should serve as a wake up call to anyone who believes in self-determination and individual liberty.

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